Card Range To Study

17 Cards in this Set

It protects tidal waters and the lands exposed and covered by the daily tides. It also protects navigable waters from harm caused by diversion of nonnavigable tributaries.

navigable waters

What are the duties of the state as a trustee of the Public Trust?

1. Continuing supervision control over its navigable waters and the lands beneath those wasters.
2. Power to permit the taking of water from a stream and use that water in a distant part of the sate, even though such taking might harm the trust uses at the source of the stream.
3. Has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses when feasible.
4. Once State has approved appropriation, the public trust imposes a duty of continuing supervision over the taking and use of the appropriated water. The state is not confined to its past decision.

There are 4

Under CL and Modern Law, how much of the sky do we own?

CL: Ownership of the land extended to the periphery of the universe.
Modern: The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material.

CL more; modern less

Under Modern Law, when is there a taking of Land because of Air space?

When they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of land, direct flights over private land by U.S. planes constitute a taking.

If there is a taking of land because of Airspace, how do we calculate damages?

It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken. Market value fairly determined is the normal measure of the recovery. And that value may reflect the use to which the land could readily be converted, as well as the existing use.

Define the doctrine of “Ancient Lights”

Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.

This is not found in American Courts.

A negative easement for light

Can one have a nuisance claim for interfering with another’s right to light?

The law of private nuisance is applicable to claims for relief from unreasonable interference with access to sunlight.

Can one obtain and easement to light and air by prescription?

An easement to light and air over adjacent property cannot be created or acquired by prescription and is not recognized as an easement by implication.

When is a zoning board's refusal to rezone in order to permit low income housing unconstitutional?

• To be unconstitutional, a zoning board's refusal to rezone in order to permit low income housing must entail a discriminatory purpose, not merely a racially disproportionate impact

How do you demonstrate a violation of the federal housing act?

• One must only show that the land use controls of the local government have a disparate effect upon a racial minority.
• However, after showing such effect, the government may prove that they furthered in theory and practice, a legitimate, bona fide government interest and that no alternative would serve that interest with less discriminatory effect.

When is due process violated concerning ordinances prohibiting members of an extended family from cohabitating?

An ordinance prohibiting members of an extended family from cohabiting violates Due Process if not tailored to serving an important government interest

Tell me about the constitutionality of zoning restricting the # of unrelated people who can live in a single-family house

1. A zoning ordinance restricting the number of unrelated people who may live in a single-family house is not an unconstitutional infringement of First Amendment rights because it bears a rational relationship to permissible state objectives (quiet place where yards are wide, people few, and motor vehicles restricted).
2. Many state courts have held invalid or inapplicable any restrictive definition of “family” in zoning ordnances

Is discriminating against people with special needs as far as zoning is concerned constitutional?

• Under the equal protection clause of the Constitution, any discrimination, by any means, to people with special needs in invalid, if other groups would not be subject to the same regulations.
• Some state statutes encourage the locating of some types of group homes, and my preempt local zoning laws purporting to exclude them

Define community.

A community is where a municipality is located and of which it forms a part

Are there any restrictions on how a community may control its own zoning?

A community may control its own zoning and development, so long as it does so for the general welfare of the community

What is a builder's remedy?

Grants a building permit to a P./developer, based on the development proposal, as long as other local regulations are followed. This is to insure that low and moderate income housing is built

What is the SC's view on housing and wealth?

The US SC had held that there is no fundamental right to housing and that wealth is not a suspect classification